Gowdey v. Rem Associates

• Decision Date: 18 September 1985
• Docket Number: No. 70921,70921
• Citation: 176 Ga.App. 83,335 S.E.2d 309
• Parties: GOWDEY et al. v. REM ASSOCIATES.
• Court: Georgia Court of Appeals

Page 309

335 S.E.2d 309

176 Ga.App. 83

GOWDEY et al. v. REM ASSOCIATES.

No. 70921.

Court of Appeals of Georgia.

Sept. 18, 1985.

Robert L. Whatley, Lithia Springs, for appellants.

Scott E. Tinnon, Donald J. Ellis, Atlanta, for appellee.

McMURRAY, Presiding Judge.

On February 1, 1982, Dr. Gowdey leased certain premises from plaintiff for use as a dentist office. The dentist and his parents, defendants Eugene Gowdey and Alice Gowdey, also signed a "guaranty" whereby they "jointly and severally irrevocably guarantee the payment of the rent and all other sums to be paid by Lessee under and pursuant to the Lease."

Dr. Gowdey vacated the premises prior to the expiration of the lease. Plaintiff filed this action in the State Court of Fulton County naming Dr. Gowdey and his parents as defendants and seeking the remaining rent due under the lease plus interest and attorney fees.

Dr. Gowdey's answer raised the issue of venue predicated upon an assertion that he was a resident of DeKalb County. Dr. Gowdey's parents did not file timely answers and although answers were filed within the 15 days following default, costs were not paid within this period.

Plaintiff's motion for default judgment as to Dr. Gowdey's parents, defendants Eugene Gowdey and Alice Gowdey, was denied. Thereafter, plaintiff voluntarily dismissed without prejudice its claim against Dr. Gowdey and initiated an action against him in the State Court of DeKalb County.

Subsequently, plaintiff renewed its motion for default judgment against Dr. Gowdey's parents, the remaining defendants in the case sub judice, predicated in part upon a certified copy of a judgment entered in favor of plaintiff and against Dr. Gowdey in the State Court of DeKalb County. Dr. Gowdey's parents, defendants Eugene Gowdey and Alice Gowdey, appeal from the order of the State Court of Fulton County granting plaintiff's motion for default judgment as to them. Held:

1. The introduction of a certified copy of the DeKalb County judgment against Dr. Gowdey was sufficient evidence to prove the existence of that judgment. OCGA § 24-7-20; Hirsch & Co. v. Lumbermen's Supply etc. Co., 130 Ga. 555, 559(3), 61 S.E. 225.

2. There was no lack of venue in Fulton County. Personal jurisdiction over defendants Eugene Gowdey and Alice Gowdey, residents of New York, was acquired under the provisions of our "long arm statute." OCGA § 9-10-90 et seq. Venue in an action under the "long arm statute" is determined by OCGA § 9-10-93, which provides that "[v]enue in cases under this article shall lie in any county wherein the business was transacted ..." Contrary to the argument of the Gowdey defendants that the guaranty was executed in New York, the only evidence in the record as to where the lease and guaranty were executed is the inference, arising from the heading of the document, that the document was executed in Fulton County. See in this regard Strickland v. Foundation Life Ins. Co., 129 Ga.App. 614, 615(1), 200 S.E.2d 306.

3. Defendants Eugene Gowdey and Alice Gowdey contend the trial court erred in refusing to open their defaults. "[W]hether or not a trial court opens a default is a matter resting within its sound discretion. CPA § 55(b) [OCGA § 9-11-55(b) ]. Because a refusal to open a default is discretionary, such refusal will not be overturned unless an abuse of discretion is manifest. Cheeks v. Barnes, 241 Ga. 22, 23, 243 S.E.2d 242; Sheet Metal Workers Inter. Assoc. v. Carter, 144 Ga.App. 48, 50(3), 240 S.E.2d 569. Our examination of the record available to us shows no abuse of discretion on the part of the trial court ... in entering default judgment for the plaintiff. Moore v. Trailmobile, 94 Ga.App. 892, 893, 96 S.E.2d 529. For the requested relief to be granted, there must be a motion, meritorious defense, a legal excuse for late filing, and payment of costs. Appellants in this case have presented no excuse except inadvertence, no meritorious defense...